The battle has been won but not the war
Robert Henderson
The Europhiles threw a great deal at the EU referendum campaign. There was the shameless use of government resources especially those of the Treasury to propagandise for the Remain side. The governor of the Bank of England enthusiastically supported the remain side. EU panjandrums directed dire threats of what the EU would do to Britain. A gigantic cast of the “great and the good” from finance, trade, industry, the media and politics (drawn from both Britain and abroad ) were daily paraded in front of the public like ancient oracles forecasting unalloyed disaster if Britain voted to leave the EU. Leading Tories in the Remain camp cast aspersions on the character of those supporting Leave – David Cameron even claimed that voting leave was immoral. Accusations of racism were routinely levelled against any leave supporter with a public voice who addressed the subject of immigration and the leave voters were labelled as xenophobes, bigots and racists. Most contemptibly when the Labour MP Jo Cox was murdered Remain supporters, including MPs, attempted by implication or direct accusation to link the killing with the Leave side’s position on immigration. So desperate were the government and Remain politicians generally to ensure a vote to remain that when the government web site which allowed people to register for a vote crashed two hours before the deadline for registering, Parliament did not hesitate to extend the deadline the next day (by 24 hours not two) in the belief that it would mean many more young voters (who generally favoured remaining in the EU) would vote.
It says much for the strength of character of the British that they refused to be cowed by this onslaught of propaganda and threats. The Remain camp started with Project Lie, moved to Project Fear and ended with Project Slander as their accusations of racism became ever more shrill as polling day approached. None of it worked. Their prophecies of doom were so frequent and so overblown that their hysterical warnings ended up looking like caricatures produced by the Leave side . The only thing which stopped the Leave campaign’s momentum was the death of Jo Cox which stopped campaigning for three days just as the polls were consistently showing increasing support for Leave. This break in momentum probably cost Leave several percentage points in the final poll as for a few days the polls swung back towards Remain.
There was also a strong tendency for the Remainers to patronise the leavers by implying or saying directly that only a bigoted blockhead who did not know better could vote to leave. Nowhere was this mentality shown more strongly than over the subject of immigration. The Remainers’ favoured tactics were simply to ignore the issue or, if forced to address it, to chant the mantras such as “Immigrants have brought so much to our country” or “Immigrants do the jobs which Britons won’t do” or “The shortage of housing, school places and GPs etc is not down to immigration but the failure of government to provide the money to build more houses, schools and GPs etc”. As immigration was the issue which troubled voters most and especially troubled the white working class, this was madness on the part of the Remain campaign. Clearly nothing has been learnt by the politically correct from Gordon Brown’s abuse of a working class English pensioner Gillian Duffy during the 2010 General Election when she complained about the effects of mass immigration and Brown was caught describing her as a bigot.
But it was not only the Remainers who wanted to ignore or explain away the problems mass immigration brings. Many on the Leave side were just as squeamish when it came to immigration. If it had not been for Nigel Farage having the courage to keep banging the immigration drum in all probability the referendum would have been lost. The question of regaining sovereignty was a very strong and positive message, but on its own it is doubtful if it would have gained sufficient traction to lead to a win. What made it really potent was when it was allied to controlling our own borders and stemming immigration. The least politically sophisticated person could readily understand the message.
The battle but not the war is won
Gratifying as the referendum result is, it was only the first battle in the war to recover Britain’s sovereignty.
As things stand we are still subject to EU law until either we leave without an agreement with the EU or fight our way through the provisions of Article 50 of the Lisbon Treaty, something which would almost certainly take two years from its activation and which could be extended indefinitely in principle with the agreement of the European Parliament. It is even conceivable that new members could be enrolled before Britain’s departure who would then have a say in what the terms for Britain would be. That is just one of the drawbacks to using Article 50. There are others which mean that Article 50 is a poisoned chalice and should be avoided. Let me quote it in full as it is short:
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
- For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
- If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
Before I get to the practical difficulties of using Article 50 let me stamp on an idea floating within the disgruntled Europhile camp that Britain could remain in the EU if no agreement was reached on the terms of leaving. This is not so. Paragraph 3 of the Article runs” The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” If there is no agreement and no extension of the negotiating time, Britain would simply leave and EU laws would cease to have effect.
The drawbacks to using Article 50 are extensive. To begin with it allows the EU to set the agenda and the pace of the negotiations. Until an agreement is reached or the leaving state simply leaves after two years of fruitless negotiation, Britain would remain subject to EU law. This would mean, amongst other things, that Britain would have to continue to pay the £8 billion odd to the EU that they keep and the £6 bn odd which the EU takes from us and then returns it to Britain with instructions on how it is to be spent, Britain could not negotiate any treaties with countries outside of the EU and British businesses would have to continue to implement EU imposed standards in areas such as the workplace for example, the hours worked. It would logically also mean that Britain was subject to any new EU laws passed during the negotiating period, for example, the EU might push through a transaction tax which would be utterly against Britain’s wishes. Most importantly Britain would have to continue accept migrants from the rest of the EU and probably other territories which have free movement with the EU such as Norway or Switzerland . Moreover, the idea that Britain would be leaving the EU after two years could provoke a massive upsurge in EU migration to these shores.
Europhile MPs
The other problem is the nature of Britain’s MPs. Most are Europhiles, as are a majority of the House of Lords. In principle the result of the referendum could be ignored – it is merely advisory not legally binding – by the Europhile majority in Parliament. That should be politically impossible but there would be ample opportunity for the Europhiles to subvert the wishes of the British public more stealthily by extending the length of time for negotiation or by making agreements with the EU which would stitch Britain back into the EU, for example, making immigration from the EU very easy.
If an agreement which firmly attaches Britain to the EU once again is concluded one of two things could happen: either Parliament could accept in on a vote or a further referendum be held on the terms of the agreement with all the bullying associated with the EU when the public of a member makes the “wrong” choice the first time around. The first would be overtly undemocratic and the second covertly undemocratic.
An alternative to an agreement between British politicians and EU politicians would be for a major party to campaign at a general election for Britain to withdraw from the leaving process and by doing so to remain in the EU. Whether such a cancellation of Britain’s withdrawal would be legal is debatable, especially if Article 50 is activated because there is no procedure in the Article for cancelling the article’s activation. However, legal or not, the rest of the EU might be willing to accept the cancellation because this is really about politics not law.
None of this is fanciful because there have already been suggestions from MPs, the most prominent being David Lammy of Labour , an ex-cabinet minister, has suggested that the Commons refuse to accept the result of the referendum and Tim Farron, the leader of the LibDems has committed his party to standing on a platform to get Britain back into the EU. There is also a petition on the government web site which is already in the millions demanding that the referendum result be deemed invalid (there is some doubt over the authenticity of large numbers of the signatures).
The next general election.
The question of when the next General Election is to be held looms over the post-referendum political world. It could be soon, although because of the Fixed Term Parliaments Act two thirds of the House of Commons would have to pass a motion permitting an election less than five years after the last General Election. As this Tory government has a working majority of only sixteen such a motion would need to be supported by Labour. Whether that would suit Labour at present is extremely dubious because the present chaos within the Party would almost certainly lose them many seats. But the other parties, including the Tories, would probably have many MPs against an early general election because there is a good chance that they could be punished by the voters either because they were for or against being a member in the EU. There are also many MPs with small majorities who would not welcome an election because an MP with a small majority is always vulnerable to defeat. With nearly 4 years of this Parliament to run such MPs might well vote against an early election. More generally, having run a general election campaign little more than a year ago parties may be short of money to run another.
If there was sufficient support for an early election there would be a halfway plausible reason for having one. As Cameron has resigned and a new Tory PM is to be appointed by the Autumn, a new election could represented as giving the new Tory regime electoral legitimacy. But it would be a rather weak argument because there is no recent precedent for governments calling a general election when prime ministers are changed during the course of a Parliament. It did not happen when Gordon Brown took over from Blair, Major succeeded Thatcher or when Callaghan replaced Wilson. It would also be wholly exceptional for a general election to be called so early in a Parliament (this one runs until 2020) for the purpose of validating a new PM. Alternatively, a new General Election might be called because if defections, resignations or death robbed the Tory Party of a majority at some time in this Parliament..
But if an early election is not called it is not inconceivable that the negotiation period could stretch deep into this Parliament or even past the 2020 date prescribed by the Fixed Term Parliaments Act. Implausible? Well, the first two years are almost certainly accounted for if Article 50 is activated and it would not be that difficult to envisage Europhile British politicians colluding with EU politicians to string the matter out in the hope that time would change the political atmosphere in Britain sufficiently to allow another referendum on whether Britain should leave the EU to be held and won by the Europhile side.
Other possibilities would be the election of a government comprised of one or more parties which stood on a platform of accepting a draft agreement on offer from the EU which would effectively re-make Britain a member of the EU or of Britain withdrawing its application to leave or Britain re-applying to join the EU after leaving it.
Because parties would have campaigned at an election for such policies any of these options could be implemented without a referendum.
What should happen?
Britain should not activate Article 50. Instead the 1972 Communities Act (the Act which gave legal force to Britain’s membership of what became the EU) should be repealed . That would make the British Parliament sovereign again. Just to make sure there is no legal confusion it would probably be advisable to enact a British sovereignty act to ensure that British judges cannot attempt to subvert Parliament’s intentions. If the Europhile majority in Commons refused to do this there would be a most serious constitutional crisis, the sort of crisis over which civil wars are fought. I doubt whether the Commons would risk that. At best such behaviour might well fracture parties and would sour the relationship between the electors and politicians for a long time.
The House of Lords is more problematical. They could delay any legislation for around two years before the Parliament Act could be used to force the legislation through. That would be a very dangerous path to go down for the Lords because it would probably result in their abolition. However, many peers might consider that a price worth paying and quite a few both inside and outside of the Lords might see it as a solution to the anomaly of an unelected chamber within the British political system.
Having repealed the 1972 Act and put any other necessary legislation on the Statute Book, Britain would then be in the position of any other country outside the EU. They would negotiate with the EU on an equal basis without the EU controlling the agenda. If the EU refuses to play ball Britain should simply trade under the WTO rules and conclude trade treaties as and when they are available and advantageous to Britain. Would the EU be obstructive? I doubt it because (1) they have a massive trade surplus with the Britain, (2) Britain is a partner in many a pan-Europe enterprise ( for example, Airbus, the European Space Agency) , (3) Britain is a very useful partner to have on the world stage because of her senior position in many international bodies (permanent member of the security council, important member of the IMF, World Bank, Nato, G7, G20), (4) there are many more people from the other EU states in Britain than there are Britons in the other EU countries and (5) the Republic of Ireland would be ruined if any serious protectionist measures aimed at Britain were enacted by the EU. Most WTO tariffs are low but where they are more substantial such as those attached to cars (around 10%) the odds are that the EU would rapidly make adjustments to those WTO tariffs because they export so many cars to the UK. The idea that nothing can be done quickly in terms of deciding the level of tariffs or their absence is obvious nonsense if both sides want an agreement.
Britain’s negotiators, whether politicians or public servants, must be willing to play hardball. What is all too often not mentioned when tariffs being imposed by the EU are discussed is that Britain can impose reciprocal tariffs which would (1) bring in substantial amounts of tax and (2) result in more British production going to the domestic British market. The argument that Britain’s export trade to the EU represent s a much larger part of the British GDP than the other EU states’ exports to the UK and consequently the EU would not be damaged as much as the UK through a tariff war does not hold water . This is because British exports to the EU are not spread uniformly throughout the EU or throughout individual members states’ economies. Hence, the impact of putting up barriers to British exports would be very damaging to particular industries and areas of EU member states. Think of the blow it would send to the German motor industry.
The repealing of the 1972 Act and what flows from it would have the great advantage of simplicity and above all speed. Delay is the enemy of those who want the wishes of the British people as expressed in the referendum to be honoured and the servant of those who wish to prevent Britain truly leaving the EU. The longer the delay the more opportunity for fudge and manipulation by those with power. Do not be misled by politicians like Boris Johnson who led the Leave campaign and who will almost certainly be at or near the head of the government . Their embracing of the Leave campaign does not mean they will deal honestly with the British who voted to leave because they thought that Britain would become truly sovereign again and above all be able to control immigration.
Already there have been British politicians who supported leaving the EU who are saying that immigration will not be massively changed. For example, Daniel Hannon a Conservative MEP and prominent Leave campaigner told presenter Evan Davis on the BBC’s Newsnight programme: “Frankly, if people watching think that they have voted and there is now going to be zero immigration from the EU, they are going to be disappointed.” and admitted that the price for remaining in a common market with the EU would be free movement of labour. Boris Johnson himself has written a piece in the Telegraph saying that access to the single market would be available to the UK after Brexit. That implies he would accept free movement of Labour for it is doubtful that EU would grant free access without mobility of Labour.
It is also noteworthy that the line on immigration most pushed by Leave campaigners during the referendum campaign was not that immigration would be reduced dramatically per se, but that an Australian-style points system would be introduced. If such a system was used without a cap on numbers coming each year, immigration could soar. Imagine that 100,000 foreign nurses a year meet the criteria for nurses in the UK and want to come to Britain, a points-system without restrictions on numbers would potentially allow all 100,000 to come in.
One thing is certain amongst the current political upheaval in Britain, the Europhiles (who can come in Eurosceptic clothing) will not lie down and accept the verdict of the referendum. Those who want Britain to be an a sovereign state again must be ever vigilant as to what is being done by politicians both here in Britain and abroad. There is a real danger of the Leave victory being stolen from us.
